The Eighth Circuit affirms an ALJ properly found a claimant would miss 1-2 workdays monthly based on objective medical evidence, supporting denial of disability benefits.
Outcome: Affirmed for appellee.
What happened
The facts of the case, in plain language.
The ALJ found, based on objective medical evidence, that Milam's impairments would cause her to miss 1-2 days of work per month, contrary to her subjective testimony claiming 3-5 days per month.
Milam engaged in substantial regular physical activities including exercising 3-4 times per week, cooking, cleaning, doing laundry, shopping, and driving, which undermined her assertion of total disability.
After asserting disability onset in August 2009, Milam sought and received unemployment benefits and looked for new employment, evidencing her willingness and ability to work.
Three independent physicians (Strode, Thomas, and Randolph) who evaluated Milam in late 2011 concluded she had only moderate limitations and could stand, walk, and sit for approximately six hours in an eight-hour workday, contradicting her treating physician Dr. Sprinkle's more restrictive conclusions.
What the court decided
Tracy Milam applied for Social Security disability benefits claiming disability from back pain, knee pain, hip pain, and osteoporosis, with alleged onset in August 2009. An ALJ found she could perform sedentary work with restrictions—including missing 1-2 workdays per month—and denied her claim. The district court affirmed. The Eighth Circuit held that substantial evidence supported the ALJ's decision. The ALJ properly discounted her treating physician's contradictory opinions against three independent physicians' findings of moderate limitations. The ALJ properly discredited her pain complaints based on unemployment benefits application, job seeking, conservative treatment, gaps in medical care, and regular daily activities. Vocational expert testimony properly supported the conclusion she could perform her prior secretarial work with identified restrictions.
- A treating physician's opinion may be discredited when it is internally inconsistent and contradicted by the independent evaluations of multiple physicians and by the claimant's own reported daily activities. (*984)
- Substantial evidence supports an ALJ's adverse credibility determination regarding subjective pain complaints where the claimant applied for unemployment benefits after the alleged disability onset, received conservative treatment, had extended gaps in seeking medical care, and engaged in extensive daily physical activities. (*985)
- An ALJ's hypothetical question to a vocational expert need include only those impairments substantially supported by the record as a whole, and vocational expert testimony based on a properly phrased hypothetical constitutes substantial evidence supporting the ALJ's determination. (*986)
- In reviewing a Social Security benefits denial, the court of appeals reviews the district court's decision de novo and affirms the ALJ's decision if substantial evidence—less than a preponderance but enough for a reasonable mind to find it adequate—supports it, even if two inconsistent positions could be drawn from the evidence. (*983)
How the court reached its decision
The court's reasoning, step by step.
Whether the ALJ properly discredited treating physician Dr. Sprinkle's opinion regarding Milam's functional limitations. Dr. Sprinkle's opinion that Milam 'may return to work' with certain restrictions directly contradicted his Functional Capabilities Assessment finding that she could neither stand nor sit for a total of even two hours per workday. Three independent physicians—Dr. Strode, Dr. Thomas, and Dr. Randolph—each independently concluded Milam had only moderate limitations and could sit and stand or walk for approximately six hours per workday. Milam's own reported daily activities—exercising with walking and weights 3–4 times per week, cooking, cleaning, doing laundry, driving, and shopping—further undermined Dr. Sprinkle's most restrictive functional assessment. Substantial evidence in the record as a whole supported the ALJ's decision to discredit Dr. Sprinkle's opinion.
Whether the ALJ properly discredited Milam's subjective complaints of disabling pain under the Polaski framework. The ALJ identified multiple valid bases for discrediting Milam's subjective complaints: she sought and received unemployment benefits after the alleged disability onset date and actively looked for new employment, both evincing willingness and ability to work; her treatment was conservative, relying on exercises and medication; she had a nearly four-year gap in seeking treatment for back pain between September 2007 and June 2011 despite claiming disability onset in August 2009; she engaged in extensive daily physical activities including regular exercise, cooking, cleaning, shopping, and driving; and while her lengthy work history supported her complaints, she had been laid off rather than forced out due to her condition. Substantial evidence supported the ALJ's adverse credibility determination regarding Milam's subjective complaints of pain.
Whether the ALJ properly relied on vocational expert testimony based on a hypothetical assuming 1–2 missed workdays per month rather than the 3–5 days Milam claimed. The ALJ specifically found that objective medical evidence did not support a need to miss more than 1–2 workdays per month. The hypothetical assumed the claimant would miss 'up to' two workdays per month—not consistently or usually two days—making the VE's testimony that employers would not tolerate absenteeism of two days 'on a consistent basis' inapplicable to render Milam unemployable under the hypothetical's terms. No error existed in the ALJ's hypothetical, and the VE's testimony based on it constituted substantial evidence supporting the conclusion that Milam could perform her past work as a secretary/administrative assistant.
Key quotes from the opinion
Notable passages from the opinion, in the court's own words.
Cases the court relied on
Earlier decisions the court cited as authority for its ruling.
Separate opinions from other justices
Views from justices who wrote separately from the majority.
BYE: Judge Bye argued that the ALJ erred in deeming immaterial the question of how many days Milam actually missed during prior employment, given substantial evidence from three former coworkers spanning decades—showing an absence rate of three to five days per month that would have rendered her unemployable—and that the ALJ was required to develop the record further as he had initially stated he would. Judge Bye further argued that the ALJ's own finding of a 1–2 day monthly absence rate was irreconcilable with the VE's testimony that only one absence per month would be tolerated by a long-term employer for a new hire, and that the district court's harmless-error analysis was flawed because a prior employer's special accommodations are irrelevant to the residual functional capacity and past-relevant-work inquiry.
Cases that cite this one
332 later published cases cite this decision. The 23 that cite it most often are listed here.
- Drebes v. Saul (District Court, E.D. Missouri 2020)
- Byassee v. Commissioner of Social Security (District Court, E.D. Missouri 2021)
- Lee v. Saul (D. Minn. 2020)
- Tuggle v. Commissioner of the Social Security Administration (District Court, W.D. Missouri 2019)
- Godden v. O'Malley (D. Minn. 2024)
- Wegleitner v. Kijakazi (District Court, E.D. Missouri 2023)
- Berutti v. Saul (District Court, W.D. Missouri 2021)
- Stokes v. Saul (District Court, W.D. Missouri 2020)
- Owens v. Saul (District Court, W.D. Missouri 2020)
- Furstenau v. Saul (District Court, W.D. Missouri 2020)
- Vinyard v. Berryhill (District Court, W.D. Missouri 2019)
- Booth v. Berryhill (District Court, W.D. Missouri 2019)
- Rhodes v. Saul (District Court, W.D. Missouri 2019)
- Wenell v. Saul (District Court, W.D. Missouri 2018)
- Linda Lawson v. Carolyn W. Colvin (8th Cir. 2015)
- Hager v. Social Security Administration (United States District Court for the Eastern District of Arkansas 2025)
- Garcia v. Bisignano (D. Minn. 2025)
- Eutenauer v. Bisignano (D. Minn. 2025)
- Jefferson v. Social Security Administration (United States District Court for the Eastern District of Arkansas 2025)
- Burg v. O'Malley (District Court, E.D. Missouri 2024)
- Rozelski v. Social Security Administration (United States District Court for the Eastern District of Arkansas 2024)
- Travis v. Kijakazi (District Court, E.D. Missouri 2024)
- In re: M/V Ram XVII (District Court, W.D. Louisiana 2024)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Full opinion
The complete text of the court's opinion as published.
Opinion of the Court
Tracy Milam appeals the district court’s
I. Background
Milam applied for disability insurance benefits on July 12, 2011. She identified her disability onset date as August 31, 2009 — the same day her employer laid her off. Prior to the layoff, Milam had worked for 20 years, most recently as a secretary/administrative assistant. Milam alleges that she is now totally disabled because of back pain, knee pain, hip pain, and osteoporosis.
A. Milam’s Medical History
On August 6, 2007, Milam visited Dr. Brent Sprinkle, D.O., complaining of “[c]ervical pain, some low back pain, [and] intermittent tingling.” Dr. Sprinkle tested both her upper and lower extremities and found no significant limitation in range of motion, no evidence of instability, no gross misalignments, and no strength deficits. He also tested her neck and upper spine and found no strength deficits and no significant limitations on flexion, extension, rotation, or side-bending. His examination of her lumbar spine, however, revealed decreased motion and thoracic scoliosis. Dr. Sprinkle ultimately diagnosed “[i]dio-pathic scoliosis status post fusion in the 1970s.”
Dr. • Sprinkle then ordered an MRI of Milam’s cervical spine. The MRI revealed a “straightening of the cervical spine without sublaxation” and that Milam’s “cervical cord [was] normal in signal throughout.” The MRI indicated that “[m]ild disc/osteo-phyte complexes]” were causing “minimal” or “mild” canal narrowing at the C3-C4, C4-C5, and C6-C7 discs. The MRI likewise indicated that “[b]road disc/osteo-phyte complex[es were] causing] mild to moderate canal narrowing, and appear[ed] to contact the anterior cord.... Mild indentation of the anterior cord [was] noted without signal abnormality.”
Milam returned to Dr. Sprinkle on August 16, 2007. He diagnosed cervical degenerative disc disease. He opined that Milam’s “pain is more muscle spasm related since about two minutes post trigger point injection her pain was considerably reduced.”
Milam visited Dr. Sprinkle again on September 14, 2007. Dr. Sprinkle administered a trigger point injection, prescribed Zanaflex (a muscle relaxant) and Ultram ER (a pain reliever), and recommended a return visit in three to four weeks.
When Milam returned to Dr. Sprinkle on October 12, 2007, Dr. Sprinkle noted that the trigger point injection “seem[ed] to have made a huge difference” and that Milam was “not taking the Zanaflex.” He then cleared her to return to work.
Milam did not seek treatment from Dr. Sprinkle again for her back pain until June 3, 2011 — nearly four years later, and nearly two years after she claims she became disabled. During this visit, Milam informed Dr. Sprinkle that she “want[ed] to pursue disability.” Dr. Sprinkle’s exam revealed no strength deficits, no instability, and no significant loss of range of motion except for a certain “decreased range of motion” in her lumbar spine. He also noted “[diffuse myofascial trigger points” and “bilateral lumbar paraspinal trigger points.” An x-ray showed that “previous spinal hardware for thoracic scoliosis ... appealed] to be in good position” and that “some mild degenerative is above and below her hardware.” Milam was “concerned that her pain [had] progressed,” and Dr. Sprinkle noted “some progression of degenerative changes ... above and below the level of her hardware infusion.”
About this time, Milam began keeping a “Pain and Function Journal.” She continued making periodic entries until September 26, 2012. Milam’s periodic entries generally noted that she experienced pain, headaches, stiffness, shortness of breath, and fevers. She usually rated her pain on a zero-to-ten scale. She rated her pain somewhere between zero and six on the significant majority of days in which she recorded any pain; in contrast, she rated her pain as a nine or ten only three times throughout the approximately 16-month period.
On June 17, 2011, Milam visited Dr. David Shenker, M.D., at a women’s clinic to obtain an annual examination. She denied, among other things, any tingling, numbness, muscular weakness, joint pain, joint swelling, or difficulty sleeping.
Dr. Steven Strode, M.D., completed a Physical Residual Functional Capacity Assessment of Milam on September 10, 2011. He concluded that Milam could stand or walk for approximately six hours in an eight-hour workday. He also concluded that she could sit for approximately six hours in an eight-hour workday; frequently lift or carry up to ten pounds; occasionally lift or carry up to 20 pounds; frequently climb stairs or ramps; and occasionally climb ladders, balance, stoop, kneel, crouch, or crawl. He noted that Milam “[cjooks, cleans, does laundry, walks, drives, goes out alone, and shops in stores.” A case analysis performed by Dr. Jerry Thomas, M.D., on November 15, 2011, reached the same conclusions with respect to Milam’s limitations.
On November 9, 2011, Dr. Bruce Randolph, M.D., performed a consultative general physical examination of Milam. He diagnosed Milam with scoliosis, chronic back pain, and arthritis. He also noted that she had normal range of motion in her shoulders, hips, knees, and spine and had only “moderate limitation in standing, walking, climbing, squatting, lifting and carrying.”
On March 26, 2012, Dr. Sprinkle saw Milam and recorded that she could not “tolerate hardly any bending[,] lifting[,] twisting[,] or walking[,] or standing to a significant degree.” He noted no significant changes in range of motion, stability, or strength. He recommended that she take or continue taking Skelaxin (a muscle relaxant) and NSAIDs (non-steriodal anti-inflammatory drugs), deferred her injections, and advised her to return for treatment as needed.
Three months later, on June 28, 2012, Milam returned to Dr. Sprinkle for further assessment. Dr. Sprinkle noted that Mi-lam was feeling pain and that “[tjhere are no relieving factors.” He also noted that Milam was pursuing “disability because of her inability to tolerate primarily prolonged sitting or standing or bending or twisting and heavy lifting as a result of her diffuse cervical thoracic and lumbar degenerative disease and scoliosis and Harrington rod placement.” Later that same day, however, he wrote a letter “To Whom It May Concern” stating that Milam “may return to work,” provided she did not bend, twist, lift more than ten pounds, or stand or sit for prolonged periods of time.
Finally, on October 30, 2012, Dr. Sprinkle completed a Functional Capabilities Assessment in which he opined that Milam could frequently lift less than ten pounds, occasionally lift ten pounds, stand or walk
B. ALJ Hearing and Decision
At Milam’s request, an .ALJ conducted a hearing regarding Milam’s application on October 26, 2012. With respect to her prior employment, Milam testified that her employer laid her off as part of a reduction in work force. The ALJ noted on the record his general suspicions about claimants who are “laid off — they work until the last day and then all of a sudden they’re disabled.” He also observed that, after Milam’s layoff and alleged disability onset date, she sought and received unemployment benefits and even looked for a new job.
Milam testified at the hearing that she can drive for only 20 minutes without back and hip pain, can sit for only 30 minutes continuously before needing to stand due to pain, can lift up to five to ten pounds, has limited ability to bend her back, and has difficulties rotating and squatting. She testified that she is in pain “24/7 on a good day” and sleeps an average of four to five hours per night. She submitted letters from three former coworkers stating, among other things, that Milam was absent from work up to five days per month.
Milam also testified about her daily activities. She confirmed that she cooks for up to 20 minutes every day, does laundry, showers on her own, and shops for groceries. She occasionally uses a walker or a cane that her mother gave her, although no physician ever prescribed that she use them.
The ALJ then posed two hypothetical scenarios to the vocational expert (VE) present at the hearing. The first hypothetical consisted of a person similar to Milam in terms of age and work experience who had mild to moderate pain; could sit for only four to six hours in an eight-hour workday; could stand for only two to three hours in an eight-hour workday; could sit or stand continuously for only 30 minutes at a time; could occasionally climb, stoop, crouch, kneel, and crawl; and would have to miss one or two workdays every month. The second hypothetical consisted of a similar person who had to miss three to five workdays per month due to moderate to severe pain.
The VE testified that the person in the first hypothetical could perform Milam’s past work as a secretary/administrative assistant but that the person in the second hypothetical could not find employment due to excessive absenteeism. According to the VE, “generally when you miss two days or 10 percent on a consistent basis employers would not tolerate it; however, on[e] day a month ... for a long-term employee — employers would tolerate that, your honor.” Milam then testified that she missed, on average, three to five workdays every month.
The ALJ ultimately found that Milam was not disabled and issued a written decision denying Milam’s claim. The ALJ found that Milam could perform sedentary work with the following restrictions:
[She can] sit no more than 4-6 hours and stand no more than 2-3 hours in an eight-hour workday. The claimant can st^nd or sit for up to thirty minutes at a time and then requires the option to sit or 'stand at will. She can occasionally climb, stoop, crouch, kneel and crawl. The claimant’s symptoms, including pain, will cause her to miss 1-2 days of work per month.
C. Procedural History
Milam appealed the ALJ’s decision to the Social Security Administration’s Appeals Council. The Appeals Council denied her request for review, finding no “basis for changing the [ALJ]’s decision.”
II. Discussion
On appeal, Milam argues that substantial evidence in the record as a whole does not support the ALJ’s decision because the ALJ (1) improperly discredited Dr. Sprinkle’s opinion; (2) improperly discredited Milam’s subjective complaints; and (3) improperly relied on VE testimony that, according to Milam, does not support the ALJ’s decision.
We review de novo the district court’s decision upholding the ALJ’s denial of social security benefits. Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006). We will affirm the denial if substantial evidence in the record as a whole supports the ALJ’s decision. Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010). Substantial evidence is “less than a preponderance but ... enough that a reasonable mind would find it adequate to support the conclusion.” Id. (alteration in original) (quotation omitted). “We must consider evidence that both supports and detracts from the ALJ’s decision, but we will not reverse an administrative decision simply because some evidence may support the opposite conclusion.” Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011) (quotations and citations omitted). Indeed, we must affirm the denial of benefits if “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ’s findings.” Id. (quotations and citations omitted).
A. Dr. Sprinkle’s Opinion
Generally, “[a] treating physician’s opinion is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.”- House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (quotation and citation omitted). “A treating physician’s own inconsistency may [] undermine his opinion and diminish or eliminate the weight given his opinions.” Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (citing Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). In this case, Dr. Sprinkle’s opinion that Milam is unable to work is not only “inconsistent with the other substantial evidence,” it is also inconsistent with his own treatment and notes.
First, Dr. Sprinkle’s opinion that Milam “may return to work” with certain restrictions does not comport with his opinion that Milam could neither stand nor sit for a total of even two hours per workday. His opinion that Milam “may return to work” does comport, however, with the opinions of three other physicians who independently evaluated Milam’s impairments in late 2011 and concluded that she had only moderate limitations. Dr. Strode, for instance, concluded that Milam could stand or walk for approximately six hours per eight-hour workday and could likewise sit for approximately six hours per eight-hour workday. Dr. Thomas agreed with this assessment. Similarly, Dr. Randolph noted that Milam had only “moderate limitation in standing, walking, climbing, squatting, lifting and carrying.” These medical opinions cast significant doubt on Dr. Sprinkle’s opinions, particularly when considered in light of Dr-. Sprinkle’s own belief that Milam “may return to work.” Id.; Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008) (holding that the ALJ properly discounted a treating physician’s opinion when it was inconsistent with his own treatment notes, as well as other medical opinions).
In sum, given Dr. Sprinkle’s opinion that Milam could return to work; the opinions of Dr. Strode, Dr. Thomas, and Dr. Randolph; and Milam’s regular physical activities, we conclude that substantial evidence in the record as a whole supports the ALJ’s decision to discredit Dr. Sprinkle’s opinion.
B. Milam’s Subjective Complaints
“Where objective evidence does not fully support the degree of severity in a claimant’s subjective complaints of pain, the ALJ must consider all evidence relevant to those complaints.” Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). This includes evidence pertaining to “the claimant’s daily activities”; “the duration, frequency and intensity of the pain”; “precipitating and aggravating factors”; “dosage, effectiveness and side effects of medication”; and “functional restrictions.” Polaski, 739 F.2d at 1322. Of course, “[t]he ALJ need not explicitly discuss each Polaski factor. It is sufficient if he acknowledges and considers those factors before discounting a claimant’s subjective complaints.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004) (internal citations omitted). “The ALJ may discount complaints of pain if they are inconsistent with the evidence as a whole. If the ALJ discredits a claimant’s credibility and gives a good reason for doing so, we will defer to its judgment even if every - factor is not discussed in depth.” Perkins, 648 F.3d at 900 (quotations and citations omitted).
The ALJ identified multiple valid reasons for discrediting Milam’s subjective complaints of pain, including Milam’s application for and receipt of unemployment benefits after she allegedly became disabled. In seeking and obtaining such unemployment benefits, Milam evinced a willingness and ability to work, which contradicts her claim of disabling pain. Jernigan v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991) (“A claimant may admit an ability to work by applying for unemployment compensation benefits because such an applicant must hold [her]self out as available, willing and able to work.” (citation omitted)). Milam’s search for a new job after
The ALJ also noted Milam’s relatively conservative treatment history, which relied on “a conservative course of treatment, including exercises, ... and medication.” Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (footnote omitted) (citation omitted). Moreover, Milam did not seek medical treatment for her alleged pain for long periods of time. In the nearly four years between September 2007 and June 2011, for instance, Milam did not seek any medical treatment from Dr. Sprinkle for her back pain — notwithstanding her assertion that she actually became disabled in August 2009. See Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (holding that a claimant’s “failure to seek medical assistance for her alleged ... impairments contradicts her subjective complaints of disabling conditions and supports the ALJ’s decision to deny benefits” (citations omitted)).
Milam’s regular physical activities, as discussed above, further undermine her assertion that she is unable to perform even sedentary work. Of course, “the ability to do activities such as light housework and visiting with friends” alone are insufficient reason to discredit Milam’s subjective complaints. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996) (quotation and citations omitted). But the extent of Mi-lam’s regular physical activities, particularly when considered in conjunction with the medical record in this case, further supports the ALJ’s decision. See, e.g., Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003) (finding that the claimant’s ability to shop, drive short distances, attend church, and visit relatives was inconsistent with her assertion of disabling pain); Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997) (finding that the claimant’s ability to “dress and bathe herself,” and “do some housework, cooking, and shopping” contradicted her “testimony regarding the severity of her pain and disability”).
The ALJ also considered, among other things, Milam’s work history. Milam is correct that her “lengthy work history supports her subjective complaints of disabling pain.” Black, 143 F.3d at 387. “[Ojffsetting this work history[, however,] is the fact that [Milam] was laid off from her position, rather than forced out due to her condition.” Id. (citation omitted).
In light of the foregoing considerations and the record as a whole in this case, we-find that substantial evidence supports the ALJ’s adverse credibility determination.
C. VE’s Testimony
The ALJ found Milam was not disabled in part because the VE testified Milam could perform her prior work as a secretary/administrative assistant. As discussed above, the VE’s testimony was based on a hypothetical scenario in which a person similar to Milam missed one or two workdays per month. Milam takes issue with this hypothetical in part because she contends her impairments require her to miss up to five workdays per month. The ALJ specifically found, however, that the objective medical evidence did not support a need to miss more than one or two workdays per month. We find no error in the ALJ’s hypothetical. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996) (“The ALJ’s hypothetical question need include only those impairments that the ALJ finds are substantially supported by the record as a whole.” (quotations and citations omitted)). And we further find that the VE’s testimony constitutes substantial evidence supporting the ALJ’s determination that Milam could perform her past work. Id. (“Testimony from a VE based on a properly phrased hypothetical question consti
Milam also seemingly argues that the VE’s testimony should be interpreted to mean that an employer would never tolerate two absences in any given month. We disagree. The VE made clear that she was testifying about absenteeism “on a consistent basis.” The ALJ’s hypothetical to the YE assumed only that Milam would miss up to two workdays per month — not that Milam would consistently miss two workdays per month, or even that Milam would usually miss two workdays per month.
III. Conclusion
In sum, the ALJ’s decision is supported by substantial evidence on the record as a whole. We affirm.
. The Honorable Jerome Kearney, United States Magistrate Judge for the Eastern District of Arkansas, to whom the parties consented to refer the case under 28 U.S.C. § 636(c).
. A Harrington rod was implanted along Mi-lam’s spine in 1976 to treat her scoliosis.
Dissenting Opinion
dissenting.
I disagree with the majority’s characterization of the evidence regarding Milam’s consistent absenteeism and the ALJ’s, at best, unclear resolution of the issue. I believe the case should be remanded to the ALJ for further development on the issue.
The Vocational Expert (‘YE”) testified that “in terms of an absenteeism, ... generally when you miss two days or 10 percent on a consistent basis[,] employers would not tolerate it; however, on[e] day a -month for [Milam’s position] for a long-term employee — employers would tolerate that.”
First, I think the ALJ erred in finding immaterial the issue of how many days Milam missed per month. If Milam would be expected to miss three to five days per month because of her pain from her impairments, it is undisputed she would be unemployable. In addition to Milam’s own reports of pain and need to miss three to five days of work per month during her prior employment, three of her former coworkers submitted letters explaining how much pain Milam was consistently in while at work and how much time she consistently missed. Her manager from 1988 to 1998 explained that Milam “consistently was forced to miss work and [was] many times in a great deal of pain while at
The ALJ disregarded all of this evidence and failed to develop the record further, all because he did not believe the objective, medical evidence before him would support a conclusion that Milam should miss so much time from work. It is undisputed, and the ALJ found, that Milam suffered from several back-related severe impairments. As detailed in the majority opinion, it is undisputed that she suffered continuing pain and received treatment for the pain, including injections, for many years as a result of these impairments. She need not be completely sedentary or often-hospitalized to find she lived with chronic pain, managing it as best she could. There is not substantial evidence in the record to support the ALJ’s conclusion that Milam’s impairments and pain would cause her to miss less than two days per month. See Douglas v. Bowen, 836 F.2d 392, 396 (8th Cir. 1987) (“Any conclusion that [claimant] could work at a job without having more than one or two absences due to [her] various impairments is not supported by substantial evidence.”). Milam was “not required to document her absences[, s]he testified that she missed work because she was sick and there is nothing in the record to suggest that this was not the case.” Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998). Her employer not only “conceded that her absences were legitimate,” id., but three separate co-workers provided personal testimony of how severe her pain was and how many days she consistently missed over the course of many years. In light of the overwhelming evidence regarding her pri- or absenteeism, the absence of any reason to suggest she missed work for anything other than her pain, and the undisputed medical evidence of severe impairments and pain, I believe the ALJ erred. He should have, at the very least, developed the record further, as he initially stated he would. See, e.g., Godoua v. Colvin, 564 Fed.Appx. 876, 878 (8th Cir. 2014) (“[I]t is ALJ’s duty to develop record fully and fairly during claimant’s proceedings, which are non-adversarial.”).
Second, as the district court acknowledged, putting the issue above aside, the ALJ concluded Milam’s residual functional capacity would cause her to miss one or two days per month, which was inconsistent with the VE’s testimony that missing two days per month would not be tolerated by any employer. In fact, the VE testified that only a long-term employer would tolerate consistent absences of one day per month. The ALJ did not explain how Milam could gain employment with a long-term employer, since her prior company no longer existed. Even if the ALJ concluded Milam would miss less than two days of work per month, it is unclear
The district court believed that although Milam could not secure future employment as generally found in the economy based on her absenteeism, she could find work “as she actually performed it in the past” because “her former employer made accommodations that allowed her to take off more than two days a month.” But the question of how she performed her work in the past relates to her job duties and functions — not how excessively accommodating her prior employer was. See 20 C.F.R. § 404.1560(b) (“We will first compare our assessment of your residual functional capacity with the physical and mental demands of your past relevant work.” (emphasis added)); 20 C.F.R. § 404.1520(f) (“If you can still do this kind of work.... ” (emphasis added)). The fact that her prior employer went out of its way to accommodate Milam cannot be used to contradict the VE’s undisputed testimony that no other employer would tolerate more than one absence per month on a consistent basis. The ALJ’s apparent finding that Milam would miss more than one day per month consistently was above the threshold the VE testified would be tolerated by any employer. In light of the undisputed testimony from the VE, I believe the ALJ erred in finding Milam could find employment if she were to consistently miss more than one day per month for a new employer.
. This testimony is consistent with testimony from vocational experts in past cases. See, e.g., Hacker v. Barnhart, 459 F.3d 934, 942 (8th Cir. 2006) (Heaney, J., dissenting) (noting testimony from the vocational expert that "if Hacker missed more than two days of work per month, her absenteeism would render her unemployable”); Douglas v. Bowen, 836 F.2d 392, 396 (8th Cir. 1987) (noting testimony from vocational expert that claimant would be unemployable if he "had an absentee rate in excess of one or two days a month” (emphasis added)).
Continue your research
- Eighth Circuit cases applying Polaski credibility factors to claimants with chronic pain, conservative treatment histories, and unemployment benefits applications
- Cases on ALJ duty to develop the record and resolve absenteeism disputes in Social Security disability proceedings
- Secondary sources on the treating physician rule post-2017 SSA regulatory revision eliminating the treating-source hierarchy under 20 C.F.R. § 404.1520c
Case-law data current through December 31, 2025. Source: CourtListener bulk data.